U.S. v. Fuesting
| Citation | 845 F.2d 664 |
| Decision Date | 15 April 1988 |
| Docket Number | No. 87-1006,87-1006 |
| Parties | 25 Fed. R. Evid. Serv. 680 UNITED STATES of America, Plaintiff-Appellee, v. Ronald FUESTING, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Robert Weiner, Robert Weiner Law Office, Springfield, Ill., for defendant-appellant.
James Porter, Asst. U.S. Atty., Frederick J. Hess, U.S. Atty., East St. Louis, Ill., for plaintiff-appellee.
Before WOOD and POSNER, Circuit Judges, and GRANT, Senior District Judge. *
Defendant Ronald Fuesting appeals his conviction on two counts of a superseding criminal indictment charging him with possession with intent to distribute marijuana, 21 U.S.C. Sec. 841(a)(1), and with attempt to manufacture marijuana, 21 U.S.C. Secs. 841(a)(1) and 846.
In the summer of 1985, the Illinois State Police were involved in a marijuana eradication program known as "Operation Kneecap". On July 31, 1985, Officers Larry Coughlin and Michael Summerville were returning via helicopter from a cutting operation when they observed what appeared to be a field of marijuana approximately 80 yards from the Fuesting residence, and a path leading from the field to the back door of the house. After landing, the field was confirmed to be marijuana and the area was secured.
Debra Fuesting, the defendant's wife, was subsequently observed driving away from the house and was stopped by police at a nearby roadblock. After being advised of her Miranda rights, Mrs. Fuesting was briefly detained for questioning concerning the marijuana field. Mrs. Fuesting voluntarily answered the questions put to her by Officer Harold Tarrant, and after initially denying any knowledge of the field, stated that the marijuana did in fact belong to her husband and that there could be more in the basement of their residence. Mrs. Fuesting thereafter agreed to accompany Officer Tarrant to the police station for further questioning. At the station, she was again advised of her rights. After consulting with an attorney and being advised by the police that she was not under arrest, Mrs. Fuesting left the police station without further questioning.
Based on the observations of the helicopter team and statements made by Mrs. Fuesting, the police sought a search warrant for the Fuesting home. A warrant, however, had not yet been issued when Mrs. Fuesting returned home. Officer Summerville approached Mrs. Fuesting and asked her to leave the premises. When she inquired about retrieving a few items from the house, Officer Summerville agreed to her request and, without Mrs. Fuesting's consent, accompanied her into the home.
A search warrant was issued and executed later that evening, resulting in the seizure of a quantity of marijuana and a number of items related to the production thereof from the basement of the Fuesting residence.
Robert Fuesting was arrested by state authorities on July 31, 1985, and was charged in an Illinois state court on August 1, 1985 with possession of marijuana with intent to deliver and with manufacturing marijuana. The state charges were dismissed nolle prosequied on September 13, 1985.
Similar charges were thereafter filed in the United States District Court for the Southern District of Illinois by way of a complaint on September 5, 1985. On September 18, 1985, a day before the preliminary hearing was to be conducted, the government moved to dismiss the complaint on the grounds that it "[was] going to present evidence and witnesses to the Grand Jury to further develop this case." The government's motion to dismiss was granted over Fuesting's objection on September 19, 1985.
In addition to the criminal complaint, the government filed a civil complaint for forfeiture against Fuesting. The civil complaint was filed on September 5, 1985; and on March 5, 1986, almost six months after criminal charges had been dismissed, the government served notice of its intent to take the discovery depositions of both Fuesting and his wife. 1
A two-count indictment was subsequently returned against Fuesting on May 22, 1986, charging him with possession with the intent to distribute marijuana and with manufacturing marijuana, 21 U.S.C. Sec. 841(a)(1).
Fuesting was arraigned on June 6, 1986, and the cause scheduled for jury trial on July 1, 1986. Following his arraignment, Fuesting filed several pretrial motions, including: a motion in limine to suppress evidence of marijuana taken from the field adjoining his property; a motion to suppress evidence illegally seized from the Fuesting home; and a motion to dismiss the May 22, 1986 indictment.
A superseding indictment was filed on June 27, 1986 modifying Count II of the original indictment to charge Fuesting with "attempt to manufacture" marijuana, 21 U.S.C. Secs. 841(a)(1) and 846. At his arraignment on July 1, 1986, Fuesting moved to dismiss the superseding indictment and to strike Count II of that indictment.
At a final pretrial conference conducted that same day, the district court found that the cause could not proceed to trial as scheduled given the outstanding pretrial motions, that additional argument was warranted on the motion to suppress, that any period of delay resulting from the pretrial motions was excludable for purposes of determining the defendant's speedy trial rights, and that the July 1, 1986 trial date should be stricken from the court's calendar. Each of the pending pretrial motions was denied, with the last order entered on August 28, 1986. The cause was thereafter reset for trial on November 3, 1986.
The jury trial began on November 5, 1986 and concluded on November 12 with a finding of guilt on both counts of the superseding indictment. Fuesting was sentenced to two years in prison on each count, with the sentences to run concurrently, followed by a special parole term of three years.
Fuesting now appeals his conviction, alleging that the district court erred (1) in denying the motions to dismiss the federal indictments filed on May 22, 1986 and June 27, 1986; (2) in denying the motions to suppress evidence seized from the marijuana field and from his home; and (3) in refusing to admit the testimony of certain witnesses called in his defense. We discuss each of these issues in turn.
Fuesting moved to dismiss both the original and superseding indictments on the grounds that the delay prior to indictment violated his rights under the Speedy Trial Act, 18 U.S.C. Sec. 3161. 2 He expands that argument on appeal to include an alleged deprivation of his right to due process and to a speedy trial under the fifth and sixth amendments to the Constitution. 3
Speedy Trial: The district court found that the time between dismissal of the September 5, 1985 complaint and the return of the federal indictment on May 22, 1986 was excludable for purposes of the Speedy Trial Act, United States v. MacDonald, 456 U.S. 1, 7 n. 7 and accompanying text at 7-9, 102 S.Ct. 1497, 1501 n. 7, 1501-1503, 71 L.Ed.2d 696 (1982), and that the filing of state charges on August 1, 1985 was irrelevant to a speedy trial determination under the Act. United States v. Iaquinta, 674 F.2d 260, 267 (4th Cir.1982); United States v. Burkhalter, 583 F.2d 389, 392 (8th Cir.1978). It therefore denied the motion to dismiss both the original and superseding indictments.
Fuesting argues on appeal that the preindictment delay in his case should have been considered in determining whether there had been a violation of his right to a speedy trial, and that the district court erred when, relying on MacDonald, it found the time between dismissal of the complaint and the return of the initial indictment to be excludable under the Speedy Trial Act. He maintains that he asserted his right to a speedy trial when he objected to the dismissal of the federal complaint; that he never waived that right; that at the time the complaint was dismissed, the government had in its possession all of the information it needed to bring its case before the next grand jury; that its failure to do so until May 1986 resulted in an "inordinate delay"; and that he was prejudiced by the delay, and was thereby denied his right to a speedy trial and to due process. 4
To the extent Fuesting asserts a violation of his right to a speedy trial under either the Speedy Trial Act or the sixth amendment, we find his arguments to be without merit.
The Speedy Trial Act (the "Act") provides in pertinent part:
In any case in which a plea of not guilty is entered, the trial of a defendant charged in an ... indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the ... indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs ...
18 U.S.C. Sec. 3161(c)(1).
The Act was intended "to give effect to the sixth amendment right to a speedy trial...." S.Rep. No. 93-1021, p. 1 (1974), and specifically provides that any period of delay between the dismissal of charges and the subsequent reinstatement thereof shall be excluded in computing the time in which trial must commence. 18 U.S.C. Secs. 3161(d), (h)(6); MacDonald, 456 U.S. at 7 n. 7, 102 S.Ct. at 1501 n. 7. "When no indictment is outstanding, only the 'actual restraints imposed by arrest and holding to answer a criminal charge ... engage the particular protections of the speedy trial provisions of the Sixth Amendment.' " United States v. Loud Hawk, 474 U.S. 302, 310, 106 S.Ct. 648, 654, 88 L.Ed.2d 640 (1986), quoting United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Fuesting's arrest on July 31, 1985 by state authorities and the subsequent filing of state charges on August 1, 1985 was properly ignored by the district court in determining Fuesting's speedy trial rights in the present case. The state charges were dismissed...
To continue reading
Request your trial
-
Chrysler Grp. LLC v. Walden
...Fed.Appx. 941, 945 (11th Cir. 2005) ; Reilly v. Natwest Markets Group Inc. , 181 F.3d 253, 266 (2d Cir. 1999) ; United States v. Fuesting , 845 F.2d 664, 673 (7th Cir. 1988). The generality of the new rules on relevance and prejudice does not leave them toothless against the particular prob......
-
U.S. v. Canoy
...the evidence--vague, speculative, or conclusory allegations will not suffice.' " Koller, 956 F.2d at 1415 (quoting United States v. Fuesting, 845 F.2d 664, 669 (7th Cir.1988)); see also Pharm, 984 F.2d at 787. Regardless of the formulation, it is clear that the prejudice must be concrete an......
-
U.S. v. Moya-Gomez
...is, of course, subject to the plain error doctrine of Rule 52(b) of the Federal Rules of Criminal Procedure. See United States v. Fuesting, 845 F.2d 664, 670-71 (7th Cir.1988). However, contentions raised for the first time on appeal under Rule 52(b) "must be newly-raised questions of law, ......
-
U.S. v. Chaidez
...her stepfather's privacy, she certainly could surrender her own privacy interest, which she did by consenting. See United States v. Fuesting, 845 F.2d 664, 671 (7th Cir.1988).) Chavira emphasizes that nothing Silva said to Agent Rodriguez indicated that she had authority to consent to the s......